SULEMAN HAJI AHMED UMER Vs. HAJI ABDULLA HAJI RAHIMTULLA

JUDGEMENT

(1.) THIS is an appeal from a decision of the High Court of Bombay in its appellate jurisdiction, given in favour of the plaintiff-respondent, and reversing a judgment of the Original Side of that Court which judgment had dismissed, the plaintiff-respondent's action to recover various sums of money bailed by him to the defendant-appellant between the years 1923 and 1928.

(2.) THE only question for determination in this appeal is whether the respondent as plaintiff brought this action within time or whether his claim is barred under the Indian Limitation Act, IX of 1908, and the answer to this question depends on what was the character of the bailment under which the plaintiff handed over and the defendant received these sums of money. If by that bailment the respondent must claim these sums of money as " money payable for money lent", Article 57 of the Indian Limitation Act, or as " money lent under an agreement that it shall be payable on demand," Article 59 of the Indian Limitation Act, then and in each case the period of limitation would be three years commencing from, the date when the loan was made, and April 14, 1932, when the present action was brought, will admittedly have been more than three years after the last of such loans was made, consequently the action would fail. If, however, by that bailment the respondent could claim these sums of money as " money deposited under an agreement that it shall be payable on demand, including money of a customer in the hands of his banker so payable," Article 60 of the Indian Limitation Act, then the period of limitation would be three years commencing from the date when demand for these sums of money was made, and this action was admittedly brought within three years after such demand by the respondent. THE question has then to be determined whether he bailed these moneys to the appellant as a loan or as a deposit.

(3.) ON this view of the case it is unnecessary to consider the questions mainly discussed by the Court of trial, such as the significance of the appellant having destroyed the books of account which recorded these bailments, or the difficulty of believing the respondent where his evidence conflicted with that of the appellant; he may well have been an undependable witness even to the invention in places of false stories to get out of difficulties. The admitted facts bring the case within the test laid down in the judgment of the Board that has been quoted from. This was not a case disclosing any duty on the bailee of the moneys to seek out his bailor and repay him, but only a duty to repay if and when the bailor requested repayment. These bailments being deposits, the respondent brought his action within the time allowed by the Indian Limitation Act, No. IX of 1908, and must succeed.